Sludgegate Summing Up

After nearly eleven hundred days of drama, 35
previous appearances in court, four barristers, three legal
firms, two Private Investigator's reports - and 22 days in
court for the Sludgegate trial itself - it's over.

It has
been a long road with many hurdles to even get Adrian
Chisholm's case before the court. Yesterday some of the
cracks in the case engendered by that long road were exposed
as Auckland City Council's lawyers made their closing
submissions. This extended update brings you the
highlights.

Barrister Nicole Edelmann raced through the
council's defence of Chisholm's allegations, summing up:
Council owed no duty to Adrian Chisholm; even if they did
they didn't breach it; even if they did his project "doesn't
even reach the standard of a pipe dream" and would have
fallen over anyway. In ruining Chisholm's project and
ensuring his investors walked away they "probably did Adrian
a favour."

Figures that council relied upon to prove they
'did Adrian a favour' had their own cracks. Introduced
earlier by council's expert witness Tony Dean, they were
coloured by his often-ludicrous comparisons between
Chisholm's planned resort, and the Puka Park resort where
Dean received his experience as a quantity surveyor many
years ago. Dean says his figures show no profit in
Chisholm's project. Chisholm's quantity surveyor by contrast
says his own figures show a tidy profit. As Chisholm's
quantity surveyor observed earlier, Dean's figures may be
true if one assumes we are re-building Puka Park using 1960s
assumptions - but of course we're not. Edelmann told Justice
Chambers, presiding, that he must decide for himself which
surveyor he believes.

Chambers himself demurred at some
points in Edelmann's presentation. Chisholm had earlier said
he had a legitimate expectation that reserve land bordering
his resort project would stay as reserve. LaHatte told the
court "council has special duties in administering a
reserve. In fact they only got to the stage of needing to
use a reserve [to dump sludge] because of their own
negligence in their site decisions." Edelmann claimed
however that as the Reserves Act only sets out the powers of
council with respect to reserves, and not what council may
NOT do with them, then there was nothing to stop council
using a reserve for a sludge dump. Chambers observed,
however, "presumably [the Act] limits council's powers to
those specified in it. It doesn't, for example say that it
may not be used for a used car yard either."

Edelmann
cited case law that the Bill of Rights obligation to protect
natural justice which Chisholm also relies on is overridden
by the Resource Management Act: "the common law rights
enshrined in [the Bill of Rights] cannot override the
express provisions in the Resource Management Act relating
to the making of rules." As Chambers observed: "To those of
us not in the Environment Court it is sometimes strange the
things they consider."

"It defies logic that experienced
council officers would show malice," summed up Nicole
Edelmann in concluding her defence of the experienced
council officers. Adrian Chisholm observes however that
Edelmann's view itself defies both logic, and the evidence
of his own experience. Also disagreeing with Edelmann would
be the hundred or so victims of council officers who told
their stories to the recent Auditor-General's Inquiry into
the Hauraki Gulf Islands.

However, it has not been easy to
prove that malice in Chisholm's case. Being dropped by
Russell McVeagh early this year, and later abandoned by
barrister Rob Weir, has meant Chisholm's case was drawn
together by a largely amateur band of supporters, with the
result as Justice Chambers observed that the "particulars
are slightly haphazard." Putting Chisholm's case to the
court, barrister Chris LaHatte has often found himself
hamstrung by evidence that Chisholm's supporters have either
overlooked or introduced improperly when putting the case
together.

One example of the gaps in Chisholm's case was
pointed out by Justice Chambers: "Your problem," he told
LaHatte, "is that if you maintain council' s sludge consent
application was hopeless, then there should have been expert
evidence called to say it was hopeless. Sure, some middens
were found, but I don't know from your evidence whether or
not that made it hopeless."

One compelling piece of
evidence that LaHatte has fought unsuccessfully to have
introduced is the March 16 memo that readers of these
updates will be familiar with. "I submit," he told Chambers,
"it ought to have been before you. The point I stress is
that council maintain they are a responsible local
authority; if so then they ought not to hide any of their
actions." The point has a certain logic.

Chisholm's main
investor Rod Dawson, whose withdrawal from the project
triggered its collapse, took a bit if a hammering from the
court. "I think things deteriorated from the moment Mr
Chisholm interfered with [Mr Dawson' s] dinner party,' was
one wry comment from Justice Chambers, concluding, "he was
not the easiest partner for Mr Chisholm to have." A great
deal of time was spent analysing the Shareholders' Agreement
drawn up by Dawson's lawyer Nigel Harrison; Chambers
eventually concluded "it is basically a complete mess."
Dawson withdrew from the agreement when it was clear that
council were persisting with the sludge dump.

Speaking
outside the court after the day's conclusion, Chisholm
summed up, saying: "I'm glad we fought this; if we didn't
fight what those council bastards did to us we'd always
regret it. We may not beat them; we may not even get a
result - but we've bloodied their noses and that's the least
they deserve for what they put us through. Now, we can put
it all behind us and get on with our lives."

This will be
the last Sludgegate Update. A summing up of the story will
appear in the next Free Radical magazine, out in February,
and of course all the Sludgegate updates can be found on The
Free Radical site. Justice Chambers expects to announce his
decision some time in the New Year. Until then, I wish all
readers and non-council employees a happy holiday
season.

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